A couple of years back Auckland City opened its annual Heritage Week celebrations with a re-enactment of the day, 40 years before, when Tim Shadbolt and assorted hippies and Vietnam War protesters "liberated" Albert Park.

Mr Shadbolt, now Invercargill mayor, donned a a long-haired wig and joined his ageing fellow-protest mates including Sue Bradford to mark a red-letter day for free speech in the city.

The city library even had a display of photographs and film to celebrate the occasion.

Defying the city bylaws, several thousand protesters had marched one Sunday afternoon in September 1969 to the Albert Park band rotunda, and held, shock horror, a political rally. There was speechifying, dancing, music making and the inhaling of forbidden substances.

It started a "Jumping Sunday" tradition, which, despite much official displeasure, continued for several years.

Reports that the Auckland Council wants to kick the "Occupy Auckland" protest camp off the Aotea Square lawn suggest the celebrations came too soon. And that when it comes to officialdom, old habits die hard.

It's true the lush green grass seems rather the worse for wear from the tent encampment, and that the electricity generator that drones away is a little noisy, but that aside, what harm are the occupiers inflicting? They're bringing a bit of life to the place.

One of the justifications for the $80 million-plus makeover of the square was to create an assembly place for the citizenry.

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The focus was on victory parades for sporting teams and the like. But surely a rally trying to save theworld has a place in the scheme of things.

We're told the unpleasantness has to be gone because the protest will clash with a Christmas in the Square booking, featuring markets and performances aimed at children.

Now I'm not big on public authorities getting involved in religious events, but if my council is set on promoting the Christmas message then what is more relevant - a market which commercialises the season or a protest camp critiquing the sins of the existing world economy? After all, Jesus had little time for the money-lenders of his time.

Whatever the merits of the cause, from Dunedin come hints that evicting the protesters might not be easy anyway. For even if local politicians haven't progressed in 40 years, the law related to free speech has. Dunedin City called on the police to effect eviction orders on their encampment of Occupy Dunedin protesters and were rebuffed.

Dunedin-Clutha area commander Inspector Greg Sparrow said he had considered the legal position and concluded the trespass notices did not meet "the test of balancing the rights and freedoms of all parties".

He said police were yet to see any action by the protesters "that would justify police intervention", but would continue to monitor the situation.

A "disappointed" mayor, Dave Cull, fulminated: "We are completely at a loss to know where the lack of enforceability might begin or end.

"It makes one wonder just what the police will enforce in our community and what they won't. Is it up to them to decide what the law is, or can we rely on our laws and bylaws?

"It leaves us wondering, I guess, whether we can rely on backup for the community's interests."

Inspector Sparrow's statement explained this. He said the courts had made it clear that any power to issue trespass notices to people protesting in a public place had to be "exercised reasonably" and balance the rights and freedoms of those involved.

Otago University law professor Andrew Geddis had already blogged a warning to the council to tread carefully.

He pointed out that if the council issued a trespass notice which had "the effect of limiting a right under the NZ Bill of Rights Act, then that issuance would only be valid if it was "reasonable" for the Dunedin city council to limit that right in that way."

The right is to peacefully assemble, and unless it can be proved that the trespass order is "reasonable" the police would be breaching the law and liable to damages.

No doubt a determined civil rights lawyer would have some fun debating whether a group of citizens peacefully protesting about the imminent collapse of the capitalist world had precedence over a tent city of trinket traders.

But do we need the fight? It's Christmas. Surely there's room enough for all.

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Brian Rudman's first news story was for Auckland University student paper Outspoke, exposing an SIS spy on campus during the heady days of the Vietnam War. It resulted in a Commission of Inquiry and an award for student journalist of the year. A stint editing the Labour Party's start-up Auckland newspaper NZ Statesman followed. Rudman decided journalism was the career for him, but the NZ Herald and Auckland Star thought otherwise when he came job-hunting. After a year on the "hippy trail" overland to London, he spent four years on Fleet St with various British provincial papers. He then joined the Auckland Star, winning the Dulux Journalist of the Year award for coverage of the 1976 Dawn Raids against Polynesian overstayers. He has also worked on the NZ Listener, Auckland Sun, and since 1996, for the NZ Herald as feature writer and columnist. He has a BA in History and Politics.